Dovala wants state to take another look at her case

ELYRIA -- An attorney who worked with Lorain County Common Pleas Judge James Burge in the case of convicted killer Melissa Dovala said in a court filing that there "material inconsistencies" in Burge's recent affidavit regarding her request for a new trial.

Numerous court documents have been filed by Dovala's attorneys to have the state take another look at her case. Dovala's attorneys have argued that Burge, who was one of Dovala's attorneys at the time of her 2005 trial, did not provide an effective defense when Dovala was convicted of killing 5-month-old Riley Smath while baby-sitting him in February 2004 in her home in Amherst.

Laura Perkovic, who was co-counsel with Burge at the time, wrote in a letter dated Feb. 5 to Dovala's now attorney Barry Wilford and others in the case that she is willing to participate in a telephone interview to give her recollection of what happened. Perkovic now lives in Idaho.

Wilford wrote in a recent court filing that although Burge stated in his affidavit he had an on-going formal relationship with Dr. Thomas Swanson, it also would force the reader to conclude that Burge falsified his relationship with Swanson, who was married to Perkovic, at the time.

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Wilford wrote that it would appear that way for obvious self-serving reasons: "to explain his otherwise neglectful failure to search for any other appropriate medical expert to challenge the state's case; and to support his decision to argue what the state at trial ridiculed as a crackpot medical theory by excluding any alternative medical basis for the injury."

Wilford wrote that this should provide the court with reasons to re-examine and re-weigh the credibility attached to all other parts in Burge's deposition/hearing testimony.

Consulting with co-counsel, who is not a medical doctor, is not a medical consultation, Wilford wrote, and when Burge admitted he did not have first-hand knowledge of the opinion of a neurologist, he necessarily confessed he never engaged in a medical consultation.

The "argument of the state that the present state of the record does not show that Judge Burge did not fully investigate the case is simply preposterous," Wilford wrote. "The record is this: there was no consultation with a neurologist by Judge Burge, and there is no affirmative proof that there was any consultation by co-counsel."

Dovala is serving 15 years to life sentence for murder, felonious assault and endangering children. Smath suffered complications from a massive, lethal head injury that consisted of several fractures of his skull. Visiting Judge Judith Cross has ruled twice that Burge provided an effective defense.

Burge testified that he had consulted with a Dr. Tom Watson throughout the case and that Watson had attended the trial, apparently misidentifying Swanson. Swanson has said he did not have a consulting relationship on the case.